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European Unions argument on its liability for the impact of Climate Change

Represented by: Jesus Inno Jaime C. Loreto, France, European Union

a.) States are liable for environmental damage in other states where activities in the former states are
directly responsible for the damages in the latter. In this case, can it be concluded that activities in the
respondents resulted in the damage in the applicants?

No. Under the international law, States shall not inflict damage on or violate the rights of other
States. In environmental law, this is captured in the so-called no harm rule which in turn has
its foundations in the principle of good neighborliness between States formally equal under
international law. The Rio Declaration, which echoes Principle 21 of the 1972 Stockholm
Declaration, reiterates this rule of customary international law, outlawing transboundary
environmental injury

(i) Identifying the damaging activity attributable to a state,


(ii) Establishing a causal link between the activity and the damage,
(iii) Determining either a violation of international law or a violation of a duty of care
(due diligence), which is
(iv) Owed to the damaged state.
(v) Step in a court of law would be to quantify the damage caused and relate those
back to the activity.

The no harm rule also forms the basis of international environmental law, such as, inter alia, the
1992 UN Framework Convention on Climate Change (FCCC) and its 1997 Kyoto Protocol. This rule
also contains an obligation to minimize risk, i.e. to prevent harm when it is foreseeable. This is of
particular importance in the context of adaptation to climate change, and the question of who
has to bear the costs of such measures. 1

In the petitioners pleading, the petitioner failed to attribute to us, the respondents, that first
element of the no harm rule - Identifying the damaging activity attributable to a state. We
admit that the European Union is a historical emitter but since the dawn of the 20 th century, the
UNION has obliged its member states to reduce its carbon emissions even before the convention
of Paris Agreement. Thus, the UNION had provided due diligence in reducing or mitigating of
carbon emission which is a compliance of its obligation under the UNFCC and the Kyoto Protocol.

b.) Is the science of climate change adequate enough to justify that respondents activities are the
proximate cause of the climate change impacts being experienced by the applicants?

Yes. The majority of the scientific evidence in the case of Urgenda vs Dutch Government cite
derives from the climate reports published by the International Panel on Climate Change (IPCC).
The findings of the IPCC have been recognized by the 195 countries (and the European Union)
that signed the 1992 UN Climate Convention and have been adopted (also by the Netherlands)
as the premise for their climate policies. As such, these findings carry exceptional evidentiary
weight in legal proceedings, particularly as the IPCCs reports are compiled through a worldwide
process of hearing all arguments, with each draft report subject to two rounds of assessments,
first by external scientists and then by the country signatories to the UN Climate Convention.

1 https://www.fnu.zmaw.de/fileadmin/fnu-files/publication/tol/enpolliability.pdf
This means that the entire gamut of scientific views are taken into account in the compilation of
each IPCC report and evaluated on their merits before the definitive report is ratified by the joint
assembly of Member States. Summarized below are a few of the facts established by the IPCC
and invoked by Urgenda et al.

Science has established with 100% certainty that the Earth is warming. It has also established
that the concentration of carbon dioxide (CO2) in the atmosphere has increased sharply since
the time of the Industrial Revolution and particularly during last 50 years due to human
activities (most notably the burning of fossil fuels). Science has also established with 95%
certainty that there is a correlation between these two scientific certainties and that global
warming is in fact caused by these anthropogenic (man-made) greenhouse gas emissions.
Moreover, science has established with 90% certainty that an increase in the Earths average
temperature by more than 2 degrees Celsius will have an adverse effect on all societies around
the world.

The IPCC reports additionally state that it has been scientifically established with more than 90%
certainty that atmospheric concentrations of CO2 never exceeded 300 ppm (parts per million)7
at any time in the 650,000 years preceding the Industrial Revolution and further that this
concentration hit a new high of 400 ppm in 2013. According to science, most of the effects of
this unnaturally high carbon concentration will not actually become manifest and visible until
the latter half of the 21st century as it takes 30 to 50 years from the time it is emitted into the
atmosphere for carbon dioxide to achieve its full atmospheric and terrestrial warming impact.

By extension, the effects observed in the world today, such as the melting of the North Pole,
actually only represent the full warming impact of historical emissions up until around 1980,
when the atmospheric concentration of CO2 was 340 ppm. To date, these historic emissions
have led to a warming of 0.8 degrees Celsius, already proving sufficiently powerful to cause the
North Poles summer ice cover to melt by 50% over the last 30 years. Emissions discharged after
1980 therefore, have yet to achieve their full warming effect on the planet. Scientific calculations
indicate that this will lead to an additional temperature increase of 0.6 degrees (i.e. 1.4 degrees
Celsius in total) that can no longer be avoided, not even if humans were to stop burning oil, gas,
brown coal and coal with immediate effect.

c.) Does the UNFCCC, Kyoto Protocol, Paris Agreement and other international instruments such as the
Stockholm and Rio Declarations create liability for contributions by countries to GHG emissions in the
atmosphere?

The FCCC and Kyoto Protocol provide only a partial answer to the issue of responsibility
for damage. The Convention does not address the issue directly. Rather, during the negotiation
process of the FCCC industrialized nations emphasized that they would not accept any treaty
provisions hinting at state responsibility. This caused several States, upon signature of the FCCC
and the Kyoto Protocol, to make the following declaration, which refers to State responsibility:
signature of the Convention shall in no way constitute a renunciation of any rights under
international law concerning state responsibility for the adverse effects of climate change . This
reservation had been proposed by the Alliance of Small Island States for inclusion in the
Convention itself during the negotiations21 but was not included in the final document. The
Kyoto Protocol contains no pertinent provisions either.
Both FCCC and Kyoto Protocol contain some unique provisions relating to adaptation and
funding for adaptation. Firstly, Article 4.1 (b) FCCC obliges all Parties to formulate and
implement national or regional programs containing measures to mitigate climate change and
measures to facilitate adequate adaptation to climate change. Thus, adaptation is not a
voluntary undertaking but a substantive obligation on all Parties with a view to reducing future
climate change damage. However, there is uncertainty as to what constitute adequate
adaptation measures and when and exactly how the obligation must be met.

Secondly, by ratifying the Convention, OECD countries have accepted a general


obligation to assist developing countries in meeting the costs of adaptation under certain
circumstances.

Thirdly, the Kyoto Protocol establishes a special adaptation fund that will receive
revenues from the operation of the Clean Development Mechanism and from voluntary
commitments by Parties. New funds for adaptation activities were established at the 7th
Conference of the Parties to the FCCC.

The wording of the treaty only foresees partial funding of adaptation measures by Annex
II countries. The general legal frameworks of responsibility as well as burden sharing issues are
not addressed. Funding pledges made are not directly connected to any concrete assessment of
the actual aggregate adaptation needs of developing countries. Even though the funding
provisions of the FCCC are mandatory, thus far, funding is made available on a political basis
without attaching it to legal responsibilities, even though the polluter pays principle was
suggested by countries as the basis for determining respective countries shares during the
COP6bis negotiations.25 Thus, the FCCC and Kyoto Protocol do not resolve issues of state
responsibility for adaptation and residual damage. We now proceed to look at specific law rules
and treaty provisions which could serve as the basis for showing that a state has done wrong
or acted negligent, an important element of a state responsibility claim. 2

d.) Is the responsibility of the Respondents specific and particular to them (in contrast to a general
obligation to affected countries), thus giving the Applicants the right to ask the remedies they are
requesting?

No. The Kyoto Protocol which is an ergo omnes obligation that can be invoked by one
State on behalf of all and it is conceivable that even non-Parties could challenge non-compliant
Kyoto Parties. There would be no need to show negligent behavior of the respective state, rather
the breach of obligation would in itself constitute the required wrongdoing to trigger the right
to reparation, i.e. compensation for damage in as much as they are attributable to the State
exceeding its Kyoto target. However, such a claim could only encompass the excess emissions
over and above the target as agreed by the respective country.

Under the Kyoto Protocol, the EU committed itself to reducing its greenhouse gases
emissions by 8% during the first commitment period from 2008 to 2012. This target is shared
between the Member States under a legally binding burden-sharing agreement, which sets
individual emissions targets for each Member State 4. On 31 May 2002, the EU and all its Member
States ratified the Kyoto Protocol.

2 Ibid(1)
Economic analyses of the Kyoto Protocol and its implications for the EU show that the
overall compliance costs are difficult to estimate and can greatly vary, depending on a range of
factors. Provided that cost-effective policies are given full priority, the compliance costs to the EU
economy are estimated at around 0.06% of GDP or 3.7 billion annually between 2008 and
2012.

The ten accession countries scheduled to join the EU in May 2004 all have ratified the
Kyoto Protocol and have their own Kyoto targets of between 6% and 8%. The EU's 8% target only
refers to the current 15 Member States, and this will not change after enlargement.

The EU met its UNFCCC commitment to stabilise its greenhouse gas emissions at 1990
levels by 2000, by reducing its emissions by 3.3% between 1990 and 2000. This reduction also
means that the EU made progress towards reaching its 8% Kyoto emission reduction target.
However, emissions went up by 0.3% between 1999 and 2000, and by 1% between 2000 and
2001. So, in 2001, the latest year for which figures are available, the EU's greenhouse gas
emissions stood at 2.3% below their levels in 1990.

A considerable part of the initial progress was due to large cuts in emissions in Germany
(by 18.3%, about half of which is estimated to be the consequence of economic restructuring in
former East Germany) and the UK (by 12%, part of which is due to the move from coal to gas) as
well as Luxembourg (by 44.2%, much of which is a result of the restructuring of the steel
industry). Ten of the 15 Member States are a long way off the track towards meeting their
obligations under the EU burden-sharing arrangement.

In terms of sectors, since 1990 emissions have been reduced in the manufacturing
industries, the energy sector (electricity and heat production) and from small combustion
installations, including households. By contrast, CO 2 emissions from transport increased by 18%
between 1990 and 2000, with a share in total greenhouse gas emissions of 21%.

These figures show that significant further efforts are required by the EU and its
individual Member States to meet their obligations under the Kyoto Protocol. The EU emissions
trading system is expected to play an important role in bringing the less well performing EU
Member States back on track.3

e) Are the remedies requested by the Applicants appropriate? Can they be enforced against the
Respondents?

Yes. The ICJ has jurisdiction over cases involving the interpretation and application of UNFCC,
Kyoto Protocol and Paris Agreement.

However, the Applicants did not successfully provide the elements of the no-harm rule
under international law.

f) In the case of China, can it ask for a future exemption of liability on the grounds of historical
responsibility and equity (as evidenced by its low per capita emissions)?

3 MEMO/04/43 Bruxelles, 4 March 2004 Kyoto Protocol


The Kyoto Protocol which is an ergo omnes obligation that can be invoked by one State on behalf
of all and it is conceivable that even non-Parties could challenge non-compliant Kyoto Parties.
There would be no need to show negligent behavior of the respective state, rather the breach of
obligation would in itself constitute the required wrongdoing to trigger the right to reparation,
i.e. compensation for damage in as much as they are attributable to the State exceeding its Kyoto
target. However, such a claim could only encompass the excess emissions over and above the
target as agreed by the respective country.

China cannot invoke that it should be exempted from complying with the international
instruments due to by its low per capita emissions.

China has been the worlds largest greenhouse gas (GHG) emitter since 2006. Under the 2009
Copenhagen Accord, China pledged to reduce its emissions intensity by 40-45 percent from 2005
levels by 2020. In a joint announcement with the United States in Beijing in November 2014,
China announced two new goals: peaking greenhouse gas emissions by around 2030, and
increasing non-fossil sources to 20 percent of total energy by 2030. China later included these
two goals in its intended nationally determined contribution (INDC) to the new international
climate agreement to be concluded in Paris in December 2015, along with a goal of reducing
carbon intensity 60-65 percent below 2005 levels by 2030. 4

China emits almost twice the amount of greenhouse gases as the US, which it surpassed in 2006
as the worlds top contributor to atmospheric carbon dioxide. Today, the country accounts for
approximately 23 percent of all global CO2 emissions. The United States government estimates
project that, barring major reform, China will double its emissions by 2040, due to its heavy
reliance on fossil fuels for steel production and electricity. Until recently, China was hesitant to
establish targets for emissions, which continue to increase, although at a slower rate. 5

4 https://www.c2es.org/international/key-country-policies/china
5 http://www.worldatlas.com/articles/biggest-contributors-to-global-warming-in-the-world.html